Will They Be Held Accountable, And If So For What?

While Donald Trump is only president for another few days, it’s important he be prosecuted.

(Photo by Win McNamee/Getty Images)

President Donald Trump caused a riot this week. He and his warm-up team (Rudy Giuliani, Eric Trump, and others) riled up the crowd to the point where they scaled the walls of the Capitol, broke through doors and windows, and laid siege to that citadel of democracy.

The people inside, captured on video, selfies, and security cameras, should be easy to identify. Many were already known. Take Jake Angeli, known as “Q Shaman,” from Phoenix, a QAnon adherent. He stood on the dais bare-chested, furry hat and horns atop his head, proud to be holding an American flag, and sitting in the Speaker’s chair. Or, Richard Barnett, aka “Bigo,” of Arkansas, who brazenly lounged in Nancy Pelosi’s office, feet on the desk, leaving a message on a file folder in bold print: “We will not back down.”

Then there’s the newly elected delegate from West Virginia, Derrick Evans, who live-filmed himself while rushing with the mob through the Capitol doors shouting, “We’re in, we’re in. Derrick Evans is in the Capitol!”

With what crimes can these men be charged?

Well for starters, they can be charged with trespass, a misdemeanor, but easily provable. Then there’s charges of malicious destruction of property, as paintings were pulled off walls, windows broken, and media camera equipment smashed. For those who left two pipe bombs, there’s charges of illegal possession of a destructive devices and even terrorism, a crime that carries a life sentence. Last, but certainly not least, there’s a charge of murder on federal property with the death of the Capitol police officer.

For those outside who provoked the violence, there’s the crimes of “rebellion and insurrection” [18 U.S.C 2383] defined as: Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

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There’s also “seditious conspiracy”: If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both. [18 U.S.C. 2384].

While Donald Trump is only president for another few days, it’s important he be prosecuted. Although he now distances himself from the violence of Wednesday’s riot, his words ring hollow. They are the words of a man ready to say anything that serves him best in the moment, whether that means inciting violence by claiming the election was stolen or distancing himself from the very people he spurred to action.

The nation needs a formal reckoning with the outrageous acts of our president and the people who broke into the Capitol. But I’d trade the prosecution of any of the men who stormed the Capitol, scaled its walls and invaded its inner chambers for the prosecution of its leader, Donald Trump.

In any criminal prosecution where there are underlings and a leader, it is the leader who is generally the most sought after and most severely punished. After all, without that leader, the group may not have been inspired to act or pushed to violence.

No amount of rhetoric can save Trump from the fact that he started the conflagration. His actions fit the definition of rebellion and insurrection. “He who sets on foot” or “gives aid or comfort” is liable. Trump exhorted his followers to march to the Capitol saying, “You’ll never take back our country with weakness. You have to show strength. You have to be strong.” His lawyer, Rudolph Giuliani, ranted to the crowd “Let’s have trial by combat.” Trump later told his followers after they’d invaded the Capitol, “We love you.” How’s that for giving comfort.

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Trump set this rebellion on foot long before Wednesday. Ever since he lost the election, he fueled his right-wing and conservative bases through his delusional rantings that the election was stolen, that the fraud was widespread, and that his victory was obvious and overwhelming. He’s now scapegoating the people who entered without accepting any of the blame.  One might argue that the killing of Air Force veteran Ashli Babbitt, shot by Capitol police while breaking and entering, should be laid at his feet.

Besides a needed reckoning this country deserves, prosecuting Trump achieves another important benefit. According to the statute, a person convicted “shall be incapable of holding any office under the United States” again.

That goal, in and of itself, is worth fighting for.


Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.